Exposición de Motivos

President Bush said: “Our country is at war, and our government has the obligation to protect the American people. […] And we are aggressively doing that. […] Anything we do to that effort, to that end, in this effort, any activity we conduct, is within the law. We do not torture.”

See at: http://www.whitehouse.gov/news/releases/2005/11/20051107.html (accessed on 8 December 2005), but for more ambiguous statements see also Amnesty International, “United States of America. Guantánamo and beyond: The continuing pursuit of unchecked executive power,” AI Index: AMR 51/063/2005 (13 May 2005) and Human Rights Watch, Getting Away with torture? Command Responsibility for the U.S. Abuse of Detainees, vol. 17, No. 1 (G) (April 2005).

50 _{“For the foregoing reasons, we conclude that torture as defined in and proscribed by}

Sections 2340-2340A, covers only extreme acts. Severe pain is generally of the kind difficult for the victim to endure. Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure. Severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm, such as seen in mental disorders like post-traumatic stress disorder. Additionally, such severe mental pain can arise only from the predicate acts listed on Section 2340. Because the acts inflicting torture are extreme, there is significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture. […] Finally, even if an interrogation method might violate Section 2340A, necessity or self-defense could provide justifications that would eliminate any criminal liability.”

51

The interrogation techniques approved on 2 December 2002 (see paragraph 49 and note 55),

were rescinded by Secretary of Defense memorandum for the commander, United States

Southern command of 15 January 2003 on “Counter-Resistance Techniques”. A Working Group on Detainee Interrogations within the Department of Defense was established by Secretary of Defense memorandum for the General Counsel of the Department of Defense of

15 January 2003 on “Detainee Interrogations”. Based on the final report of the Working Group of 4 April 2003, interrogation techniques were approved by Secretary of Defense memorandum for the commander, US Southern command of 16 April 2003 on “Counter-Resistance

Techniques in the War on Terrorism”. According to the update to Annex I of the second

periodic report of the United States of America to the Committee Against Torture, (submitted on 21 October 2005), on 17 March 2005, the Department of Defense determined that the Report of the Working Group on Detainee Interrogations is to be considered as having no standing in policy, practice, or law to guide any activity of the Department of Defense

(http://www.state.gov/g/drl/rls/55712.htm). See also CAT/C/48/Add.3/Rev.1, para. 78, dated 13 January 2006.

52

http://thomas.loc.gov/cgi-bin/query/D?r109:1:./temp/~r1099i99u4:b0.

53 _{“Several weeks ago, I received a letter from CPT Ian Fishback, a member of the}

82nd Airborne Division at Fort Bragg, and a veteran of combat in Afghanistan and Iraq, and a West Point graduate. Over 17 months, he struggled to get answers from his chain of command to a basic question: What standards apply to the treatment of enemy detainees? But he found no answers. In his remarkable letter, he pleads with Congress, asking us to take action to establish standards to clear up the confusion, not for the good of the terrorists but for the good of our soldiers and our country. […] The advantage of setting a standard for interrogation based

on the field manual is to cut down on the significant level of confusion that still exists with respect to which interrogation techniques are allowed. The Armed Services Committee has held hearings with a slew of high-level Defense Department officials, from regional commanders to judge advocate generals to the Department’s deputy general counsel. A chief topic of discussion in these hearings was what specific interrogation techniques are permitted, in what

environments, with which DOD detainees, by whom and when. The answers have included a whole lot of confusion. If the Pentagon’s top minds can’t sort these matters out, after

exhaustive debate and preparation, how in the world do we expect our enlisted men and women to do so? Confusion about the rules results in abuses in the field. We need a clear, simple, and consistent standard, and we have it in the Army Field Manual on interrogation. That is not just my opinion but that of many more distinguished military minds than mine.” To be found at: http://thomas.loc.gov/cgi-bin/query/D?r109:1:./temp/~r1099i99u4:b0.

54

See also Press Briefing with National Security Advisor Stephen Hadley on the McCain Amendment of 15 December 2005 at: http://www.whitehouse.gov/news/

releases/2005/12/20051215-5.html (last accessed on 21 December 2005): “As you know, our policy has been not to use cruel, inhuman or degrading treatment at home or abroad. That has been our policy. The legislative agreement that we’ve worked out with Senator McCain now makes that a matter of law, not just policy. And it makes it a matter of law that applies worldwide, at home and abroad.”

55

Jerald Phifer to Commander of Joint Task Force 170, memorandum of 11 October 2002, “Request for Approval of Counter-resistance Techniques”, which was attached to

William J. Haynes II to Secretary of Defense, memorandum of 27 November 2002,

“Counter-resistance Techniques”, and approved by Secretary Rumsfeld on 2 December 2002. (http://www.washingtonpost.com/wp-srv/nation/documents/dodmemos.pdf).

56

Secretary of Defense memorandum for the commander, US Southern command of 15 January 2003 on “Counter-Resistance Techniques”.

57 _{See footnote 51. See also overview given by the Executive Summary of the Church report}